Posted by: James Atticus Bowden | May 12, 2009

Let’s Test Constitutionality

Three easy pieces from an old former Prof. 

1.  Please cite – direct verbatim quotations are necessary – where in the Constitution it says “the President or any member of the Executive branch can order a corporate officer to be fired?”  Or, where in the Constitution is that authority given to the Congress to so order or allow the executive power?

2. Please cite – direct verbatim quotations are necessary – where in the Constitution it says “a woman has a right to an abortion.”

3.  Please cite – direct verbatim quotations are necessary – where in the Constitution it says “a graduating high school student can’t mention ‘God’ or ‘Jesus’ in graduation ceremony.”

Where in the Constitution is it?



  1. I’ll offer my Pavlovian response to this line of reasoning again, just for the sake of trying to get a conversation going: the brilliance of the Constitution is its effectiveness as a governmental blueprint without the necessity of having to address everything in the world by name. It is, by design, a very general document. Consequently, one searches in vain for any direct, in haec verba reference to virtually anything that the federal government does, even things that are not particularly controversial. So, while the Constitution does not have a clause that says that government schools cannot impose prayer requirements on students, it similarly doesn’t have the words “schools”, “students”, “graduation” “woman”, “abortion”, “corporation”, etc. The question of “where in the Constitution does it say ‘x'” is essentially a spurious one. The more fruitful and meaningful Constitutional question to ask about any federal program is whether the program falls within the general powers of the federal government or whether there is any express prohibition against the exercise of the power (for example, does an activity fall within the express prohibition against infringement of the right to keep and bear arms/establishment of religion/religious oaths for office/more than two terms as president, etc. etc.)

    If a general “powers” analysis is not the touchstone of constitutional legitimacy, we need to scrap the document and become a “Code” country like Napoleonic France or, in many respects, the modern European Union. There they write down everything, and the broad principles of legitimate government are drowned in thousands of pages of musts and can’ts.

    Most federal programs are better analyzed on policy grounds than on constitutional grounds.

  2. PS: I’m aware of no federal law or judicial pronouncement that bans a high school student from mentioning the words “God” or “Jesus” at a graduation ceremony. I’ve heard those words frequently (sometimes reverently and sometimes profanely) at virtually every high school function I’ve ever attended over the past 50 years.

    Of course, those of us in the religious community who are wary of government know full well that the Constitution does protect us against imposition of government led/sponsored prayers and we thank God for that blessing of liberty in our daily devotions.

  3. Scout,

    Your exposition is thought provoking. Your addendum nails it right on the head. “Of course, those of us in the religious community who are wary of government know full well that the Constitution does protect us against imposition of government led/sponsored prayers.” This, I think, is the key to the whole shooting match. Particularly, the word imposition. The establishment and free exercise clauses were included for a particular reason. It then boils down to an exegesis of the text and a reasonable discernment of the Framer’s intent.

  4. To say that a judge’s job is simple would be absurd. However, it is all too apparent that there has been a great growth in Federal powers since the begin of the FDR administration. The have also been few amendments to the Constitution. None that would justify the growth we have seen.

    Several factors have come together to create this mess. One I think Charlie mentions in his last statement.

    It then boils down to an exegesis of the text and a reasonable discernment of the Framer’s intent.

    Judges seem all to uninterested in discerning the intent of the Framers.

  5. Thanks fellas. I’m short on time. Forgive my brevity.

    The Constitution is explicitly and exquisitely clear on powers. All the powers you DON’T see listed belong to the states.

    So, states can require government required religious oaths for office holders – as they did. And they could write government prayers if they like – unless the legislatures wisely stopped them.

    It’s not that complicated. The problem is that Congress has passed laws giving it powers by fiat and judges go along or write new ones on the bench – because no one makes them amend the Constitution – no one will stop them.

  6. A list of things not listed can be a pretty big list, JAB.

  7. NoVa: Eggazckly. Precisely. Intentionally. On Purpose.

    The state legislatures should handle the issues seized, unconstitutionally, by the Feds.

    Like education. Health, human services, social security, medicare, etc. All state issues. No Federal – unless you amend the Constitution.

  8. My point being that there are so few things mentioned in the 1787 Constitution that presumably, under your theory, JAB, air traffic control and air carrier safety regulation would be a state function, not federal. I’m scared enough to fly as it is. I think I’d have to be heavily medicated to be comfortable on a cross-country trip with each state doing the job (beyond my usual self-medication from the on-board bar).

  9. NoVa: Article 1, Section 8. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

    I don’t see the need for a Constitutional amendment to regulate interstate commerce with control and safety regulations.

  10. Ah, the venerable Commerce Clause. Do I sense a retrenchment here? I was banking on your saying that, JAB. It’s pretty broad. You seem to agree. Once you join me in walking through a door like that, a lot of your concerns about economic regulation fall away.

  11. […] Let’s Test Constitutionality […]

  12. NoVA Scout – What you sense is the unwillingness of some judges and lawyers to use a dictionary or a history book.

    Nobody denies that gray areas exist in the Constitution. Otherwise, we would not need judges. What is obvious, however, is that judges have been making decisions that ignore the clear direction provided by the Constitution

    Consider something obvious. The Supreme Court has used the interstate commerce clause to allow the imposition civil rights regulation on business. What does civil rights regulation have to do with what the Framers intended? When normal market forces punishes the sheer stupidity the turning away customers, why is such regulation even necessary?

    When is regulation necessary? Regulation is needed to resolve disputes. These dispute occur when two or more people claim the right to the same resources. We need rules on the highway, for example, to determine who has the right of way. Otherwise, people run into each other. We don’t need regulation to force one party to do business with another, which is what civil rights regulation does.

    Next we will apply civil rights legislation to protect homosexuals, blonds, fat people, short people, ugly people, and so forth from business discrimination. Why? Because damn fool judge thinks it might be a nice thing to do.

    People go into business so that they can be their own boss. Unfortunately, busybody politicians want to be in charge of everything. They don’t know when to stop. The Constitution exists to give them a clue, and our job is to force them to read it, not to make excuses for them.

  13. OFL: we went through this in some detail in the early 1960s.

    Civil Rights has everything to do with what the framers intended. The first ten amendments to the constitution, pushed hard by some distinguished Virginians, are, in substantial part, civil rights amendments.

    Motels and restaurants that forbid travellers because of skin color have huge impacts on interstate commerce.

  14. NoVA Scout – In 1960s we did start to get very confused over the difference between rights and privileges.

    When we see somebody doing something we think wrong to someone else, there are many possible reactions.
    1. We can imitate the offender. Some people do enjoy lording over others. This is where slavery comes from. The strong gang up on the weak. When the government enforces it slavery “works” quite well — at least as well as it ever will.
    2. We can stop the offender. If the offender’s activity causes the other person harm, violating their rights, stopping the offender is the appropriate role of government.
    3. We can ignore the offender. If the offender is merely snubbing or refusing to have anything to do with the other person, we can roll our eyes and suggest that the offender is being stupid.
    4. We can force the offender to be like “us.” We can elect an Anointed One, and he can be our role model. We can make any departure from the Holy One’s thoughts and deeds illegal. We can force business to do things the holy way. We can make business sell to whom the Holy One would sell and sell only what the Holy One would sell.

    Motels and restaurants that forbid travellers because of skin color have huge impacts on interstate commerce.

    Unless government enforces segregation, race segregation does not last any longer than people want it to last. It is unprofitable to turn away customers who would like to do business with you.

    Nonetheless, it would seem we have adopted option 4. Why? It is a feel good solution, and our leader class likes it. This option gives government the most power. Instead of merely creating a master race, it makes us all slaves of a small class of thought leaders.

  15. During the 1964 campaign, my views were closer to yours, OFL, than they are now. As things degenerated in the ensuing months and years, I changed my mind. I have come to believe that it was essential for the federal government to break Jim Crow’s back and that there is sufficient authority in the Commerce Clause to have done it. Choosing Jesus (your option 4) has very little to do with it on a societal scale when one is dealing with the day-to-day humiliations of whole classes of citizens. Yes, we would all like these things to get resolved because our hearts and those of our fellow-citizens are pure. But it wasn’t happening and it is irresponsible to ask people to wait for the Second Coming or some such thing to be treated with dignity.

  16. NoVA: Believe it or not, I think the 14th Amendment applies more than the commerce clause = for national, federal laws on civil rights.

  17. I believe JAB is correct. NoVA Scout, consider that what made the day-to-day humiliations you refer to possible. Was it not the abused power government? State governments enforced racial discrimination via Jim Crow laws. Otherwise, why would private industry turn away paying customers?

    We cannot eliminate evil from the world. That will not happen until the Second Coming. Yet note what you suggest. Have you not just argued that the end of racial discrimination justified a warped interpretation of the commerce clause? Since when does the end justify the means?

    To protect the rights of Blacks, what was required? Without enforcement by State Governments, would racial discrimination have been a real issue? Was not the real need to eliminate State government enforcement of Jim Crow laws and other forms of racial discrimination by State governments?

    To protect citizen rights, the 13th, 14th, and 15th amendment explicitly permit Federal action against State governments. And such actions provided correct Federal response. And that was done. In fact, it included the idiocy of busing school children all over the place to achieve racial balance.

    As usual in such emotional situations, some people did not know when to stop. Even now we have people pushing the Federal Government towards reverse discrimination. Is not racial discrimination by government in any form wrong?

    Government involvement where it is not clearly needed is just plain foolish. Such government action presumes government knows best. Yet a republic’s success depends upon the wisdom of the People, not their leaders. By definition, a republic depends upon the wisdom of self restraint. Self restraint is what distinguishes a republic from pure democracy.

    So look again at what you just advocated. Was it restrained? If we put the government in charge of every decision, even the education of the People, from where will the wisdom of the People arise, their elected officials? Is that what we really want or need? Without the need to observe the Law, who will restrain our leaders, the People? When we let them fill our heads with empty nonsense — that the Constitution is a living document — how will we do it?

  18. No, OFL, I argued that the Commerce Clause supported the 1960s federal Civil Rights legislation (JAB helpfully pointed out that the constitutional foundations extended beyond the Commerce Clause – he is of course correct, but my comment was confined to the much debated issue of the day as to whether the Commerce Clause extended to enterprises such as hotels, restaurants, and similar establishments in a way that gave the federal government the right to forbid private acts of racial discrimination, at least with regard to those businesses. Believe me, without one federal legal regime clearly banning that behavior there would have been plenty of private Jim Crow all over the South – see, e.g., Lester (where’s-my-axe-handle?) Maddox)).

    I agree with you that racial discrimination in any direction is vile, wrong, un-American etc, and I’m a steadfast opponent of racial favoritism.

  19. NoVA Scout – Since we apparently don’t agree on what JAB meant, I think it best to leave an explanation of his thoughts to him.

    Consider the meaning of this saying.

    Better is the enemy of good.

    Trying to make them better, we tend to destroy things that work well enough. The best we can achieve is an optimum solution. Perfection is beyond us.

    If our neighbors choose to be idiots, then they will be idiots. The best we can do is to avoid being forced to participate in their idiocy, and that is the point of limited government. It is a solution that allows the wise to rule with the wisdom of their example.

    Let’s look at what we are discussing. It is a portion of Article 1, Section 8, where the Framers took the trouble to enumerate the powers of Congress.

    Clause 3
    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    Consider the context of the times and the inclusion of foreign nations and Indian Tribes. Do you actually believe the Framers of the Constitution thought civil rights issues relevant to the regulation of commerce? Can you imagine the Federal Government telling the Southern States in year 1800 that any hotel that did not serve Blacks, Indians or Irishmen would have to close? Since then what has changed in the Constitution relevant to commerce?

    Given the latitude with which you are willing to interpret the commerce clause, why did we need the 13th, 14th, and 15th amendments? When you and other others are so willing to find the meaning you want whether it is there or not, what is the point of these amendments? What is the point of any Constitution at all?

    I am reminded of the effort to give residents in Washington DC a vote in Congress. Supposedly, because the Constitution does not explicitly prohibit it, Congress can just make it happen by passing a law. Yet, to give same city the right to elect presidential electors, we needed the 23rd Amendment to the Constitution. Why is no constitutional amendment needed now? One can only assume Congress thinks the powers accorded to it by a “living Constitution” have grown.

    Frankly, I prefer the Constitution as a simple set of well defined rules to a “living Constitution.” A “living Constitution” has no fixed meaning. If it just means whatever the Supreme Court says it means, then the Constitution means nothing at all. With a “living Constitution” what matters is what the men who rule want, not the Rule of Law. As recent events indicate, a Constitution so easily molded by the men who rule cannot shield our rights.

  20. I am an opponent of Congressional/Electoral College representation for the District of Columbia, but my opposition is not based on the primary content of this thread. I would support retrocession of the remaining elements of the District of Columbia to Maryland so that residents of Washington City would have at least enough souls to support one additional member of the House.

    I don’t share your continental Euro-enthusiasm for governmental codes. The generality of the current Constituion has permited this nation to expand economically more quickly than would have been the case had we relied on a detailed recipe.

    There have been some clunker Court decisions over two centuries +. But, by and large, I think the Supreme Court has done a good job sorting out gaps in the document.

    As to your specific question about the 13th- 15th amendments, our experience in the 1950s-60s suggested strongly that these amendments were not working for all of our citizens.

  21. Continental Euro-enthusiasm for governmental codes? NoVA Scout, who said anything about a detailed recipe? Think again about the meaning of limited government.

    If our neighbors choose to be idiots, then they will be idiots. The best we can do is to avoid being forced to participate in their idiocy, and that is the point of limited government. It is a solution that allows the wise to rule with the wisdom of their example.

    When people run their own lives, is a detailed recipe required from the Federal Government? When power is decentralized to state and local governments, is a detailed recipe required from the Federal Government? Does the absence of a detailed recipe empower the president to create a detailed recipe by fiat, authorize Congress to legislate a detailed recipe, or give judges the right to dictate a detailed recipe from the bench? Was not the main point of the Constitution to limit the powers of the Federal Government to those which were needful?

    Go back again. Please reconsider my complaint. Did I suggest a detail recipe was needed, or did I complain that the Law was not being honored as it was codified? Consider your own complaint about the 13th- 15th amendments. Prior to the civil rights movement, were those amendments, as written, being honored or ignored? Did going to the other extreme truly honor the 13th- 15th amendments?

    While our tradition of common law gives judges considerable latitude, we still expect judges to uphold the Constitution, not rewrite it. Unfortunately, people are imperfect. So we have trouble obeying laws. Because we want what we want, we never will obey even the best laws exactly as we should. That, I suppose, is why God had to give us salvation as a gift. On our own, we cannot obey even those laws that we create.

    BTW – We are agreed on the retrocession of the remaining elements of the District of Columbia to Maryland.

  22. Misspelled my e-mai address. Shucks!

  23. Let’s celebrate our agreement on retrocession and build out from there, OLF.

    The battles of the 1960s were as important as those of the 1860s. The battles were different in their character, but were bitter and violent. Both were resolved in the best interests of the United States of America as a beacon of human liberty for all mankind.

    I do not propose to relitigate the issues you raise. They have been put to bed. The Law of the Land is relatively clear on these points. Hamiltonian sensibilities prevailed over Jeffersonian sensibilities. As I said previously, there are individual Supreme Court cases that disturb me, but, in the aggregate, I think the Court has done a good and faithful job of applying the Constitution. It would be impossible to draft a legislative or regulatory constitutional document without inviting a European approach that would suck the liberty out of this Great Republic.

  24. correction: “OFL”. My dyslectic apologies.

  25. OFL and NoVa, thanks so much for the grown up and informed, gentlemanly debate.

    I’ve been pressed by real life away from too much commentary this week.

    The courts are one of three political branches of government. Mere men serve as wise judges and wannabe black-robed priest kings.

    Their decisions are politics dressed up as the law of the land – until other judges change the law too.

    They don’t make settled law and legal consensus. They merely posture in front of it only when such a thing actually exists.

  26. Interesting discussion. Just a couple of observations.

    NoVA Scout – What I think frustrates people most about politics is that nothing is ever settled. When we are happy with the status quo, we want to believe Law of the Land is relatively clear, but some always have a differing point of view. So long as men see opportunities for themselves in changing the Law of the Land, the Law will be litigated — or fought over. Is that not how what you call Hamiltonian sensibilities prevailed over Jeffersonian sensibilities?

    OFL – In time, I expect the pressure for limited government to increase. The abuse of government tends to increase calls for limiting its powers. So keep at it.

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